An appeals court ruled on Thursday that a lawsuit filed by Facebook against the Manhattan district attorney’s office can proceed, paving the way for oral arguments over whether prosecutors violated the constitutional rights of 381 users by obtaining search warrants for nearly everything in their files.
Justice John W. Sweeny Jr., writing for the Appellate Division of the First Department, in Manhattan, rejected prosecutors’ motion to dismiss Facebook’s challenge to the search warrants, which were issued in July 2013 as part of a fraud investigation.
This case is not yet in Lexis or on the New York Courts website as of 3:20 ET Friday.
FBI Director James Comey on Thursday said he’s bothered by moves by Apple Inc. and Google Inc. to market privacy innovations on smartphones that put some data out of the reach of police, saying agency officials have been in touch with both companies.
Posted inCell phones|Comments Off on WSJ Law Blog: FBI Director ‘Concerned’ About New Smartphone Encryption
While egregious violations of the Fourth Amendment may be excludable in removal proceedings, a concession of removability that is an act of free will is an independent source for removal. Vanegas-Ramirez v. Holder, 2014 U.S. App. LEXIS 18351 (2d Cir. September 25, 2014)
Defendant’s stop and patdown was legally justified, and the patdown produced a valid plain feel of drugs. State v. Arrasmith, 2014-Ohio-4173, 2014 Ohio App. LEXIS 4091 (12th Dist. September 22, 2014).*
State troopers were transporting prisoners and stopped for gas. “Hamilton finished fueling his vehicle and was preparing to leave the gas station when a disheveled and foul smelling Harwell approached him and expressed an interest in becoming a state trooper.” Because they take the names of those who ask, the officer asked for defendant’s license and called it in but didn’t ask to have it run. Dispatch ran it on their own and it came back suspended. Things went downhill from there. Defendant was from NY, but his story about visiting a sick uncle in Ohio didn’t make sense. Reasonable suspicion developed and a drug dog was called for. It took a while to get there, but the officer was otherwise diligent, and the motion to suppress was properly denied. State v. Harwell, 2014-Ohio-4176, 2014 Ohio App. LEXIS 4093 (12th Dist. September 22, 2014).*
A smart electric meter that transmits information about electric usage every 15 minutes is not a search and seizure. Naperville Smart Meter Awareness v. City of Naperville, 2014 U.S. Dist. LEXIS 134861 (N.D. Ill. September 25, 2014)*: Continue reading →
The Fourth Amendment prohibits violations of our privacy and our person from unreasonable infringement by federal agents.
The founding generation had a pretty clear idea of what constituted “unreasonable,” because they experienced it firsthand under the British rule.
Prior to the Revolution, the British claimed the authority to issue Writs of Assistance allowing officials to enter private homes and businesses to search for evidence of smuggling. These general warrants authorized the holder to search anyplace for smuggled good and did not require any specification as to the place or the suspected goods. Writs of assistance never expired and were considered a valid substitute for specific search warrants. They were also transferable.
Writs of assistance were actually contrary to British legal tradition. In 1604, Attorney General of England Sir Edward Coke held in Semayne’s Case that the King did not have unlimited authority to enter a private dwelling.
Posted inReasonableness|Comments Off on Tenth Amendment Center: Fourth Amendment: The History Behind “Unreasonable”
Mere open container violation does not support a search incident of a car without more. United States v. Nash, 2014 D.C. App. LEXIS 393 (September 25, 2014):
Second, the United States cites numerous decisions upholding automobile searches for additional evidence after the police found one or more open containers of alcohol in a vehicle. Those decisions give us pause but ultimately do not persuade us. In most of the cited decisions, other circumstances — not present in Mr. Nash’s case — supported an inference that additional evidence might be found in the vehicle. See, e.g., People v. Souza, 19 Cal. Rptr. 2d 731, 732-35 (Ct. App. 1993) (driver was operating car erratically, officer could smell alcohol coming from car, another passenger was in car, and two-thirds empty bottle of tequila was located behind driver’s side headrest, inside a torn-open box of Budweiser beer). Other decisions are similar to the Seventh Circuit’s decision in McGuire, in that they appear to apply a per se rule that cannot be reconciled with the approach this court adopted in [United States v. Taylor, 49 A.3d 818, 821 (D.C. 2012)]. See, e.g., State v. Collard, 414 N.W.2d 733, 734-36 (Minn. Ct. App. 1988) (search of car for further evidence justified by presence of single open bottle of beer in car; “upon observing evidence in plain view, a warrantless search of the remainder of the passenger compartment is justified”).
Posted inSearch incident|Comments Off on DC: Mere open container violation does not support a search incident of a car
A torch commonly used by methamphetamine users on the front seat next to the defendant and other things developed during questioning justified prolonging the stop. Also, defendant had a Canadian DL and it couldn’t be accessed through NCIC, and a call to EPIC took a while and that showed defendant was involved in a money laundering case. United States v. Schmidt, 2014 U.S. Dist. LEXIS 133988 (W.D. Tex. September 24, 2014).*
Appellate court can’t second guess district court’s finding officer was credible when he said the stop was for apparently window tint violation (it turned out to be legal) and then smelling marijuana in the car. United States v. Mitchell, 2014 U.S. App. LEXIS 18307 (4th Cir. September 24, 2014).*
Through questioning, CBP officers developed probable cause to believe defendant was smuggling a large amount of cash outside the country without having filed a CMIR form. The question of whether a stop on the jetway at the airport was even the functional equivalent of the border need not be reached. [Likely not since the flight was from BWI to ATL to Jamaica.] United States v. Taylor, 2014 U.S. App. LEXIS 18312 (4th Cir. September 24, 2014).*
A GPS warrant could issue for future rental vehicles for a fixed time frame. Defendant used weekly rented rental vehicles to transport drugs and there was no way of predicting what his next vehicle would be. United States v. Miller, 2014 U.S. Dist. LEXIS 134481 (D. Md. September 24, 2014): Continue reading →
Defendant’s traffic stop had a factual basis, and his furtive movements to the passenger seat made a slightly longer investigative detention valid. State v. Perry, 2014 Mo. App. LEXIS 1040 (September 23, 2014).
An officer and a CPS worker came to defendant’s house on a report of unmanaged children and a possible working meth lab and they were granted consent to search by defendant’s live-in girlfriend. The chemical smell in the garage was apparently coming from a freshly painted motorcycle, but the officer kept looking and found the telltale signs of a meth lab (battery shavings, and HCl generator in a grill, camping fuel, and starter fluid). The consent was valid. Bulthuis v. State, 2014 Ind. App. LEXIS 472 (September 23, 2014).*
Defendant was stopped for an illegal turn, and calling in his DL showed it was suspended. That led to a valid tow and inventory per city department policy. People v. Vaughn, 2014 CO 71, 2014 Colo. LEXIS 860 (September 22, 2014).*
Posted inConsent, Inventory, Reasonable suspicion|Comments Off on MO: [Like hundreds of other cases,] Furtive movement to passenger seat during stop justifies longer detention
The mere presence of some papers of the defendant in the place searched doesn’t confer standing. There was no testimony that he was otherwise connected to the property as owner, lessee, or guest. “The mere presence of miscellaneous papers bearing Appellant’s name, without any further evidence connecting Appellant to the apartment, is insufficient to create a legitimate expectation of privacy for Appellant to contest the search.” Brown v. State, 2014 Ga. LEXIS 729 (September 22, 2014).
The confidential informant was believable because of his admission of his own criminal doings which provides an incentive to be truthful to the officers. There was probable cause on the face of the affidavit. While he has an argument it doesn’t, the officer’s version still shows a substantial basis for being credited by the magistrate, which it was. United States v. Germaine, 2014 U.S. Dist. LEXIS 133374 (S.D. W.Va. September 23, 2014).*
The officer’s failure to disclose a crime victim’s criminal history of possession of stolen property, third degree theft, and criminal mischief didn’t undermine the victim’s story that led to the probable cause finding in the affidavit for search warrant. United States v. Root, 2014 U.S. Dist. LEXIS 132914 (E.D. Wash. September 22, 2014).*
Posted inInformant hearsay, Standing|Comments Off on GA: The mere presence of some papers of the defendant in the place searched doesn’t confer standing
Over at Cato at Liberty, Julian Sanchez has an excellent post criticizing and responding to my three posts on encryption and the new Apple iOS8 operating system. The whole thing is worth reading. If you’ve been following my posts, definitely check it out.
Posted inCell phones|Comments Off on WaPo: Volokh: Julian Sanchez on encryption, law enforcement, and the balance of power
Pre-Jones installation of a GPS device not saved by a Davis-type good faith exception because Tennessee never adopted the good faith exception and there was no binding precedent from the state or SCOTUS on the issue. [Interesting discussion of the state’s attempt at good faith.] Despite that, the defendant’s statement is not the product of the illegal search and was properly admitted. State v. Phifer, 2014 Tenn. Crim. App. LEXIS 903 (September 23, 2014).
Defendant fired a gun inside his house and his daughter called the police. When they arrived, his wife consented to an entry and a search for the guns. Inside a cigar box was drug paraphernalia. That was validly found in the search. State v. Roberts, 2014-Ohio-4126, 2014 Ohio App. LEXIS 4022 (9th Dist. September 22, 2014).*
While the officer’s testimony was vague as to exact geography of the property, it wasn’t about the consent search being of the back trailer, and the testimony showed it was voluntary and granted by defendant’s then wife. State v. Sluss, 2014-Ohio-4156, 2014 Ohio App. LEXIS 4072 (4th Dist. September 16, 2014).*
Gov. Jerry Brown should sign Assembly Bill 1327 to limit the ability of police in California to use drones to spy on people.
The issue of police use of military equipment – which received national attention with the disturbing images of police in Ferguson, Mo. – includes a rapid growth in the use of drones by law enforcement. Indeed, it was recently learned that the police departments in Los Angeles and San Jose had secretly acquired drones.
Posted inDrones|Comments Off on Sacramento Bee: Viewpoints: Police should get warrants for drones
In a field office near Brunswick, Ga., a federal agent working as an undercover cybersleuth signed on to a large file-sharing network sometimes used by traders in child pornography.
Using a law-enforcement computer program called RoundUp, the agent, Stephen D. Logan, scanned computer activity by the network’s members in the state of Washington. He located a computer offering illegal photos and videos, and downloaded three files as evidence.
Local police took it from there, obtaining a warrant based on the distant search. The owner of the computer was convicted of possessing and distributing child pornography, and is now serving an 18-year sentence at a federal prison in Texas.
Had Mr. Logan worked for the F.B.I., his work on the case might have seemed routine. But Mr. Logan worked for the Naval Criminal Investigative Service, and his mission that day in April 2011, he would later testify, had been to look for military service members trading in child pornography in Washington, the location of several naval bases.
Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.
The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.
That was Then
It was a good run. …
Posted inFISA|Comments Off on Global Research: Ronald Reagan’s Executive Order 12333: End-Running the Fourth Amendment; “Legalizing” Police State Surveillance
The pre-Riley search warrant for defendant’s cell phone was based on an invalid consent search, and the good faith exception does not apply to warrants based on a prior illegal search. State v. Thomas, 2014 OK CR 12, 2014 Okla. Crim. App. LEXIS 11 (September 17, 2014).
Defendant’s parole agreement essentially permits suspicionless searches like in Samson. “The search condition unconditionally allowed searches without limitation concerning who may conduct the search, the purpose of the search (investigatory or supervisory), time, place, and the necessity of a search warrant or cause. Persons on supervised release who sign such provisions in exchange for freedom manifest an awareness that with release comes the possibility of intrusions into their homes. It is evident that parolees enjoy a severely diminished expectation of privacy compared to ordinary citizens and that the State has a substantial interest in supervising parolees ….” Terry v. State, 2014 OK CR 14, 2014 Okla. Crim. App. LEXIS 13 (September 18, 2014).
Defendant consented to the search of his vehicle. State v. Zeno, 2014 La. App. LEXIS 2203 (La.App. 1 Cir. September 19, 2014).*
Animal control officers seized animals and records from a pet store in Chattanooga for lack of water, food, and proper care. The animal seizure was valid and did not violate any clearly established right. The business record seizure, however, could not be justified by plain view or exigent circumstances. United Pet Supply v. City of Chattanooga, 2014 U.S. App. LEXIS 17900 (6th Cir. September 18, 2014).
Defendant’s stop for speeding was reasonable despite the officer’s admission that there was also a possible stop sign violation that he did not consider worth stopping him for and a color discrepancy in the DMV description [which the 9th Cir. already said is pretty thin]. United States v. Campa, 2014 U.S. Dist. LEXIS 130327 (D. Ariz. August 27, 2014).*
CI’s information coupled with his phone call and text messages setting up a drug deal was probable cause to stop, arrest, and search the vehicle. United States v. Rojas, 2014 U.S. Dist. LEXIS 130432 (E.D. Tenn. July 31, 2014).*
Defendant was taken to the hospital for a medical emergency, and the doctor on his own did a search of the body. It was never asked for by the police, so it did not implicate the Fourth Amendment. This case is much more like United States v. Black, 860 F.2d 1080 (6th Cir. 1988), where a body cavity search was allowed than United States v. Booker, 728 F.3d 535 (6th Cir. 2013). In the latter, the police were in on the search. United States v. Shepherd, 2014 U.S. Dist. LEXIS 130766 (E.D. Ky. September 15, 2014).
On the totality, defendant consented to a search although handcuffed. She was already cooperative. United States v. Sims, 2014 U.S. Dist. LEXIS 130577 (W.D. La. August 25, 2014).*
Based on text messages and advertising, officers objectively had probable cause that defendant was involved in sex trafficking, and that supported the stop and search of his car. United States v. Davis, 2014 U.S. Dist. LEXIS 130849 (C.D. Cal. September 15, 2014).*
Posted inConsent, Private search, Probable cause|Comments Off on E.D.Ky.: Drs body cavity search at hospital was private search not instigated by the police
Sen. Orrin Hatch, R-Utah, and two of his Senate colleagues have delivered a morale boost to Microsoft Corp. in its battle against U.S. search warrants for user information stored overseas, introducing an electronic communications law update intended to clarify the limits of the government’s access to data abroad.
Posted inInformational privacy|Comments Off on NLJ: LEADS Act Would Limit Access to Data Stored Abroad
In the projects of Brownsville, Brooklyn, the New York Police Department’s new strategy, Omnipresence, is what it says. Despite promises of change, to some it feels like stop and frisk by another name.
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
